McAllister v. United States
105 Fed. Cl. 180
| Fed. Cl. | 2012Background
- McAlister, pro se, sues United States for attorney’s fees under the Back Pay Act related to Patrick’s HRP-related pay action.
- Patrick was indefinitely suspended without pay from Aug 28, 2008, following DOE/NNSA determinations.
- Patrick’s hearing Oct 15, 2008 recommended recertification; Deputy Secretary adopted the recertification on Sept 17, 2009.
- Patrick was placed in pay status retroactively to Sept 17, 2009, causing back wages dispute from Aug 28, 2008.
- McAlister filed a verified petition for attorney’s fees around Oct 15, 2009; petition was dismissed by the hearing officer.
- The US moved to dismiss for failure to state a claim and lack of money-mandating source; court granted the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Back Pay Act allows direct attorney fee claims. | McAlister argues the Back Pay Act permits attorney fees as part of the remedy. | Defendant argues the Back Pay Act awards fees to the employee, not the attorney. | Direct attorney fee claims are not permitted. |
| Whether § 5332 General Schedule is a money-mandating source for this plaintiff. | Knight distinguishable; §5332 can be money-mandating for attorneys. | §5332 covers employees, not attorneys; not money-mandating for plaintiff. | §5332 is not money-mandating for plaintiff; no jurisdiction. |
| Whether plaintiff states a claim under a money-mandating source, considering the Back Pay Act. | Back Pay Act + §5332 together create jurisdiction. | No applicable money-mandating source for plaintiff’s assertion. | No money-mandating source; failure to state claim. |
Key Cases Cited
- FDL Technologies, Inc. v. United States, 967 F.2d 1578 (Fed. Cir. 1992) (EAJA-style fee awards go to the prevailing party, not attorney)
- Knight v. United States, 982 F.2d 1573 (Fed. Cir. 1993) (Back Pay Act does not permit direct attorney fee recovery)
- Doe v. United States, 463 F.3d 1314 (Fed. Cir. 2006) (jurisdictional money-mandating analysis; entitlement limits)
- Mendoza v. United States, 87 Fed.Cl. 331 (Fed. Cl. 2009) (Back Pay Act as money-mandating when linked to another statute; who may recover)
- Ferreiro v. United States, 501 F.3d 1349 (Fed. Cir. 2007) (defines money-mandating source standards)
- Connolly v. United States, 716 F.2d 882 (Fed. Cir. 1983) (identifies money-mandating source concept)